Little v. Blank

(after making the foregoing statement of the case, delivered the opinion of the court).

Section 971, Revised Statutes 1898, so far as. material here, provides that

“The county clerk . . . shall collect in advance for the use and benefit of the county the fees hereinafter enumerated. . . .”

Among the fees that the clerk is thus required to collect in advance are the following:

“For dismissal of an appeal from a justice’s court when such dismissal is entered on the minutes of the court, two dollars and fifty cents,” (Section 972, Rev. Stat. 1898.)

Section 3750, as amended in 1899, provides in part, that

“On motion an appeal may be dismissed for either of the following causes: (1) That it was not taken in time. (2) That the papers were not filed in the district court, and the advance fee required therefor was not paid within thirty days after the transcript was received by the clerk.” (Chapter 50, p. 74, Sess. Laws, 1899.)

*227It is admitted that the papers Were not filed in the district court and the advance fee paid within the time specified in the foregoing provision of the statute. But counsel for appellant insist that the payment of the advanee fee by respondent, and the filing and service of his motion did not preclude apjoellant from paying the advance fee required by law and thereby maintaining his appeal, notwithstanding the time fixed by statute for the filing of the appeal papers had expired. It is argued that, appellant having tendered the advance fee required by statute to the clerk of the district court before respondent filed and served his notice that he would on a certain day call up for hearing the motion to dismiss the appeal, it was error for the court to' dismiss the appeal. We think this position is untenable. The statute expressly provides that, on notice, appeals may be dismissed when the papers were not filed and the advance fee required therefor was not paid within thirty days after the transcript was received by the clerk. This provision of the statute was evidently intended to insure promptness in the filing of the papers in cases appealed in order that such cases, may be brought to; trial in the district court without unnecessary or unreasonable delay. If the rule contended for by appellant should obtain, the party appealing would have it in his power to either indefinitely postpone the trial of the case in the district court or force the respondent to file the papers in that court and pay the advance fee required by law, and thereby, in effect nullify the provisions of section 3750 under consideration.

Appellant’s further contention that the ■ payment by re>-spondent of the advance fee when he filed his motion to dismiss was a voluntary payment on his part and a waiver of his right to have the appeal dismissed is entirely without merit.' The law provides that this fee must be paid in advance and the clerk is prohibited from filing the papers in appeal cases until it is paid. Appellant having failed to file the papers with the clerk of the district court and pay the advance fee therefor, respondent, in order to get a hearing on his motion to dismiss, was compelled to pay the fee and have the papers *228filed, therefore, we fail to' see how a payment made under these circumstances can be construed to be a voluntary payment in the sense contended for by appellant, or a waiver of his right to have the appeal dismissed. For aught that appears in the record, the failure to file the papers and pay the advance fee in this case was due solely to the negligence of appellant, at least there is no adequate excuse offered as to why these things wei’e not done within the time the law requires they shall be done. Under these circumstances, we do not think it was an abuse of discretion on the part of the court in dismissing the appeal.

. The judgment is affirmed with costs.